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Sexual Harassment Has To Be Sexual

Although the California appellate court wasn't phased by any of the below language, if you are under 18, or likely to be offended don't read this article because it contains very vulgar sexual language.

Seemingly because the male supervisor who engaged in atrocious sexual conduct was not gay, the California Court of Appeals ruled that the following conduct was not sexual harassment. The employee's supervisor told him "Fucking quit using your goddamn fucking foot; bend the fuck over and pick the shit up. Pick that shit up, bitch." When the employee bent over, the supervisor told him he had a nice ass which he wanted to fuck, that his pants made his ass look good, he would look good in little girls' clothes, and the supervisor would fuck the shit out of the employee's ass. The supervisor said he would fuck the employee better than the supervisor fucked his old lady, he would make the employee his bitch, he would cum all over the employee's ass, and would turn the employee out. When the employee got on his knees to tie rebar, he was told that is where he belonged, on his knees. Another employee got in the victim's face and told the victim that he would make him suck the supervisor's dick. The supervisor claimed this was a funny joke[1].The employee said he thought the supervisor was gay.

The supervisor acted like he would strike the employee and the employee began walking off the job. The employee was told that if he walked off the job he would be fired. Twenty to thirty minutes after these awful incidents, the employee told a safety manager and cried. Yes, this event would traumatize most people, but Justice Bruiniers reasoned not so in the ironworker/rebar tying/unionized business at Conco.

The supervisor apologized and shook hands with the employee. Nonetheless, two co-workers called the employee a bitch thereafter, and said they would jump the employee.

The employee moved to a different work site. On the new site, he was called a narc, faggot and snitch for complaining. He was also told he would be lucky if he didn't get his ass kicked after work. A supervisor heard these comments but ignored them.

Strangely, the employee accepted a ride home from the original harasser. Personally, I have seen a few cases where the harassed accepted a ride from the harasser and the employer's lawyer obsessed on this. So if you are being harassed, don't be getting into any cars with the harasser!

In Kelley v. Conco the Appellate Court held that what happened was neither sexual harassment, nor the intentional infliction of emotional distress. Sadly, we must live in an utterly depraved society if this type of conduct is not considered outrageous and it doesn't arouse the average community members as being outrageous. Alternatively, maybe this is what goes on in the appellate court all of the time so the justices are just numb to it. All that can really be said to defend this depraved judicial opinion is that the court was convinced this was not sexual behavior because there was not any evidence the harasser was gay, or had a sexual interest in any of the things he said or did.

Sexual harassment is about subjugation. In my experience, a vast number of the sexual harassers my clients have sued do not expect to obtain sexual gratification. The harassment is about control, abuse, and abuse of power. The Appellate Court failed to comprehend how such utterly offensive comments could constitute an abuse of power through sex.

The court also decided that sexual taunting was commonplace at this particular workplace. The employee was an ironworker tying rebar at Conco sites. Apparently, the court has created a new type of immunity to vulgar workplaces of any industry. The court also decided none of this conduct caused the employee severe emotional distress despite the fact he cried as he reported this to the safety manager.

It would seem that there are other ways to criticize an employee, and probably create a worker's compensation case, that do not so closely relate to male on male sexual interests. Had the supervisor not been interested in homosexual practices, or how good a man looked in his pants, words would not have flowed from his mouth with such ease about what might be stimulating.

Now every time there is same sex harassment, the lawyer representing the employee will have to ask whether the harasser is gay. The harasser's claims about whether he is gay will then be subject to scrutiny. Consider this opinion a judicial assault on any gay people who are not openly gay and proud of their sexuality.

Other disingenuous reasons for the appellate court's decision may also be that all of the harassment happened in one day, there was an apology, and the ride home. These mitigating circumstances should not supersede such awful behavior.

This is an example of a court being restrictive. The court decided the matter should be sent back to the trial court on the basis that there might have been retaliation for complaining about sexual harassment even though none of this amounted to sexual harassment. This logic does not make a tremendous amount of sense other than the court minimizing and subtracting from the panoply of laws this conduct should violate, and potentially holding the harasser individually responsible through laws on sexual harassment and the intentional infliction of emotional distress.

It is also interesting to note that this case started with Judge M. True III's grant of a summary judgment motion. I have never personally had any experience with this judge, but do note that a google search of his name has more negative content than I recall seeing for any other trial judge. However, prior to becoming a judge this man represented employees. Odd.

Justice Bruiniers, who wrote the opinion, was apparently a police officer during the "turbulent years" at Berkeley (1967-1973). He also served in the Marines. In private practice, he represented businesses.

If any luck, the California Supreme Court will take review of this abomination of a judicial opinion. Alternatively, the legislature could take action, but with at least one of them making negative jokes about Italian Americans one must wonder whether anti-discrimination is a thing of the past. [1] Apparently this was also a funny joke to the panel of the three appellate justices who concurred in this opinion because they didn't see there being a triable issue of fact for the jury whether this might be sexual harassment, or the intentional infliction of emotional distress.

Sexual Harassment Investigations

Bradley v. Dept. of Corrections, 71 Cal.Rptr.3d 222 (2008) requires that the employer's sexual harassment investigator must understand, and the investigation must ultimately, be aimed at 1) determining fault; 2) ensuring the claimant is safe from harassment; 3) to determine what steps are needed to stop the harassment, Id. Merely listening to the claimant is not enough, Id.

Employees who are fired for complaining of sexual harassment, or due to their participation in a sexual harassment investigation, may sue under the Fair Employment and Housing Act for the loss of in a their employment, California Government Code Section 12940(h).

Do not hold back facts if you are making a sexual harassment complaint. Provide as much information as possible, or you will later be accused of not mentioning a critical aspect of the sexual harassment that was perpetrated.

If you are involved sexual harassment investigation, be careful about naming witnesses. If you are not sure if somebody saw something, do not claim they are a witness. If there are witnesses who are ex-employees or family members be sure to tell the employer about these people, and offer access to any non-employees you have contact information for but your employer may not.

If you are involved in a sexual harassment investigation, be careful about naming witnesses. If you are not sure if somebody saw something, do not claim they are a witness. If there are witnesses who are ex-employees or family members be sure to tell the employer about these people, and offer access to any non-employees you have contact information for but your employer may not.

If you have been sexually harassed, reporting it is important. Sexual harassment is a serious concern in the work environment and should not be taken lightly. We can fight for your case. Proudly Representing Employees In: Banning, Beaumont, Blythe, Cathedral City, Coachella, Corona, Hemet, Indio, Jurupa Valley, Lake Elsinore, La Quinta, Menifee, Moreno Valley, Murrieta, Norco, Palm Desert, Palm Springs, Perris, Rancho Mirage, Riverside, San Jacinoto, Temecula. Contact us, or call 951-367-1000 to consult with an Employment Lawyers Group sexual harassment lawyer, supervised by Karl Gerber who will be the lead attorney on your case.